• Selected
• Entire List

Abstract:
Most contracts scholars have come to believe that the Subjective Theory of contract formation and interpretation dominated the nineteenth century. This article demonstrates that the objective approach to formation and interpretation of contracts has been dominant since the origins of the common law. There was, indeed, a flirtation with the subjective approach in the mid nineteenth century. This flirtation had few practical consequences because the rules of evidence did not permit parties or other interested persons to testify and the parol evidence rule was vigorously applied. Soon after the bar of party testimony was lifted, the courts altered the rules of relevancy to create a new objective approach. The ultimate root of objectivity is the legal profession's distrust of party testimony. Oliver Wendell Holmes, Jr. is often credited with creating the modern objective theory. His role, however, was to propagate what the courts had already created.

Despite the defeat of the Subjective Theory, some remnants survive, particularly in cases of duress and other grounds for avoidance of contracts.

Abstract:
Oliver Wendell Holmes' most notorious statement about contract law was that "the duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,-and nothing else." This has generally been interpreted to mean that a contracting party has a lawful option to perform or not. Holmes, however, was speaking of remedial limitations and did not espouse the belief that a contracting party had a right to breach. In other writings he equated a contractual breach with the commission of a tort. As a judge he labeled contract breaches as "wrongs."

The misreading of Holmes has given comfort to theorists who espouse the notion of "efficient breach." The paper demonstrates that, whatever the merits the theory of efficient breach may have as an economic model, it has none as a legal postulate. Moreover, theorists who espouse the efficient breach theory, have difficulty in explaining why the law regards interference with a contract as a tort. Holmes, however, was one of the prime architects of the modern law of tortious interference.

Abstract:
The French author, Joseph Robert Pothier, had an enormous influence on the common law of contract. The whole structure of the Common Law of contracts and sales is based largely on Pothier's treatises on obligations and sales. The wisdom he passed on had its origins in ancient Rome but was reshaped by Aristotelian thinking in the Middle Ages, the Renaissance, as well as the humanism of the Enlightenment. It is well known that and that he was the o inventor of the rule in Hadley v. Baxendale. It is less well known that his influence on the common law of contracts was far more wide ranging.

Abstract:
Reams of paper and many dozens of articles have been written about standardized contracts that are proffered to consumers on a take-it-or-leave-it basis. Many recommendations have been made but largely ignored by courts, legislatures, and administrative agencies. This paper recommends another approach. It points out that many standard-form contracts proffered by businesses to other businesses are developed by the collaborative efforts of representatives of the various stakeholders affected by the contract. This is not the process by which standard forms are crafted for consumers. That process has been described as "unilateral private ordering by the dominant party." This paper suggests that an independent organization, such as the American Law Institute, should draft standard-form consumer contracts after consultation with consumer groups and the merchants in the relevant field. Such standard forms could regarded in the marketplace with the same respect that the Good Housekeeping Seal of Approval receives as to goods.

Abstract:
There are very few academic discussions of the collateral source rule in contract cases as opposed to tort cases. Yet, issues surrounding the existence of the rule in contract cases are very much involved in contracts decisions. A system of analysis is suggested in this paper. The starting point is the question of who provided the consideration. If the aggrieved party supplied the consideration for the collateral source, the rule should be applied to deprive the wrongdoer of the benefit of the funds provided by the source. If the defendant participated in providing the consideration for the collateral source, a closer question is posed but in most situations the role of the aggrieved party in providing the consideration is greater and the defendant should not be credited with the benefits provided by the collateral source. A further category of cases involves a contract that requires the plaintiff to provide insurance covering the risk. In such cases, the defendant is clearly entitled to be credited with payments made by the insurer. The presence of subrogation in a given case is a complicating factor. If the insurer or other source of payment be subrogated to the plaintiff’s claim, the collateral source rule is easily invoked as the victim of the breach cannot be charged with recovering twice for the same breach. In some contexts the reality of subrogation will result in the inapplicability of the collateral source rule.